by Donna Leinwand Leger, USA TODAY

by Donna Leinwand Leger, USA TODAY

A first-of-its-kind lawsuit filed Monday asks a judge to free a chimpanzee that a lawyer says is being held against his will as a pet in New York.

Tommy, who lives with a couple who have a reindeer farm in Gloversville, N.Y., is illegally imprisoned and under New York law has the right to live a more "chimpanzee-like" life at a sanctuary, says attorney Steven Wise, president of the Nonhuman Rights Project.

The lawsuit accuses Patrick and Diane Lavery of holding Tommy, a 26-year-old chimp, captive. The Laverys are "detaining Tommy in solitary confinement in a small, dank, cement cage in a cavernous dark shed" at their property, the lawsuit says.

Chimpanzees can make choices and, like humans, have an interest in freedom to live as they wish, Wise says. "It would seem exceedingly unlikely that any chimpanzee would choose to live life in a cave."

Patrick Lavery says Tommy is one of 11 chimps he has rescued from abusive or neglectful homes and cared for until they could be relocated to sanctuaries. Tommy, the last of the 11, has lived with them for more than a decade while they search for an appropriate place for him near enough to the couples' Ocala, Fla., farm so they can visit him, he said.

"He's actually my favorite. He's so attached to us. When we get home, he'll be so excited to see us," Lavery said from Florida.

The cage in New York where Tommy now lives exceeds federal and state standards and is inspected every year, he said. One wall of the cage opens to an outdoor area. This time of year, Tommy stays inside in a building heated to 70 degrees with concrete walls decorated with flowers and trees to look like a jungle, Lavery says. "The chimp has color TV and cable," Lavery said. "He watches cartoons."

"I've got 20 years experience with chimpanzees. We're not just some Joe Blow on the street who just happens to have a chimpanzee," Lavery said. "I've had animals all my life, horses, dogs reindeer. It's not a fly-by-night operation."

The Nonhuman Rights Project, represented by Wise, has asked a New York civil court for a writ of habeas corpus for Tommy, arguing that New York laws "do not limit legal personhood to homo sapiens." The lawsuit notes that, in the past, the court has decided legal issues involving other domestic animals.

State law allows any person unlawfully detained to seek a writ of habeas corpus that requires the jailers to prove the basis for the detention. New York issued such writs for slaves, not considered people under the laws of the time, to determine whether the slaves should be returned to their purported owners or given freedom, the lawsuit argues.

"Not long ago, people generally agreed that human slaves could not be legal persons, but were simply the property of their owners," Wise said. "We will assert, based on clear scientific evidence, that it's time to take the next step and recognize that these non-human animals cannot continue to be exploited as the property of their human owners."

The Nonhuman Rights Project intends to file two additional lawsuits to free two male chimpanzees, Hercules and Leo, allegedly owned by New Iberia Research Center and used in locomotion research by the anatomy department at Stony Brook University in Stony Brook, N.Y., and Kiko, a 26-year-old chimpanzee living on private property in Niagara Falls, Wise says.

Wise wants the chimps to be released to a sanctuary where the animals can live among other chimps in a more natural setting.